Shakespeare's legal maxims

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Shakespeare's legal maxims.

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SHAKESPEAEE'S LEGAL MAXIMS.

LOKDOW

FEINTED BT SPOTTISWOODB AND CO.

SEW-STHEBT SQUARE

SHAKESPEARE'S LEGAL MAXIMS.

WILLIAM LOWES EUSHTON

COKEESPOITDING MEMBER OF THE BEELIN SOCIETY POE THE STFDY OF MOBEEW
LAM-GUAG-ES, AND AUTHOR OF " 8HAKESPEAEE A LAWYEB."

* * * * Juvat integroa accedere fontes

Atque haurire. Lucretius.

* * * * " It is pleasant to handle
An untoucheii eubjent."

LONDON

LONGMAN, GUEEN, LONGMAN, AND ROBERTS

UWIVI \^'-\'^^

NOTICE.

A PoKTiON of this attempt to explain several obscure
passages in the works of William Shakespeare, has
been published amongst the transactions of " The
Berlin Society for the Study of Modern Languages,"
in the " Archiv," edited by Ludwig Herrig.

A 3

SHAKESPEARE'S LEGAL MAXIMS-

" Qui genus humanum ingenio superavit, et omneis
Restinxit, stellas exortus uti aerius sol."

Lttgeetius, iii. 1056.

The lawyer, when he reads attentively the works of
William Shakespeare, may not be more surprised by
the poet's correct use of law terms, and intimate
acquaintance with legal customs and tenures and the
lex scripta, than by his extensive and profound know-
ledge of the maxims of the English law.

PoETiA. " To offend,, and judge, are distinct offices,
And of opposed natures."

Merchant of Venice, Act 3, Scene 1.

QtTEEN Katheeine. " I do believe,

Induced by potent circumstances, that
You are mine enemy ; and make my eballenge,
You shall not be my judge : for it is you
Have blown this coal betwixt my lord and me,
Which God's dew quench ! — Therefore, I say again,
I utterly abhor, yea, from my soul,
Refuse you for my judge ; whom, yet once more,
I hold my most malicious foe, and think not
At all a friend to truth."

Henry VIII., Act 2, Scene 4.

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8

Nemo debet esse judex in propria sua causa. (12
Rep. 113.) No man ought to be a judge in his own
cause. It is a fundamental rule in the administration
of justice that a man cannot be judge in a cause in
which he is interested (per Cur. 2 Stra. 1173) : Tiemo
sibi esse judex vel suisjus dicere debet. (C. 3. 5. 1.)
If a man will prescribe that if any cattle were upon
the demesnes of the manor, there doing damage, that
the lord of the manor for the time being hath used
to distrain them, and the distress to retain tUl fine
were made to him for the damages at his will, this
prescription is void; because it is against reason
tfiat if wrong be done any man, that he thereof
should be his own judge ; for by such way, if he had
damages but to the value of an halfpeimy, he might
assess and have therefore one hundred pounds,
which should be against reason. And so such pre-
scription, or any other prescription used, if it be
against reason, this ought not, nor will not, be allowed
before judges : quia malus usus abolendus est : an
evil or invalid custom ought to be abolished. (Litt. s.
212.) It is also a maxim of the law of England, that
Aliquis non debet esse judex in propria causa, quia
non potest esse judex et pars. (Co. Litt. 141 a.)

Omtia. " This practice hath most shrewdly pass'd upon thee ;
But, when we know the grounds and authors of it,
Thou shalt be both the plaintiff and the judge
Of thine own cause."

Tioelfth Night, Act 5, Scene 1.

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Portia and Queen Katharine both seem to refer to
this maxim ; and Olivia promises, when the persons
are discovered who have made Malvoho

" The most notorious geek and gull
That e'er invention play'd on,"

that she will then allow him to be both plaintiff and
judge of his own cause, notwithstanding that Tienio
debet esse judex vn propria sua causa.

Shylock. " My deeds upon my head ! I crave the law,
The penalty and forfeit of my hond.'"

PoiillA. "Is he not able to discharge the money ? "

Bassanio. " Yes, here I tender it for him in the court ;
Yea, twice the sum : if that will not suffice,
I wiU be bound to pay it ten times o'er.
On forfeit of my hands, my head, my heart :
If this win not suffice, it must appear
That malice bears down truth. And I beseech you,
Wrest once the law to your authority :
To do a great right, do a little wrong ;
And curb this cruel devil of his will."

PoETlA. " It must not be ; there is no power in Venice
Can alter a decree established :
'Twill be recorded for a precedent ;
And many an error, by the same example,
WiU rush into the state : it cannot be."

Merchcmt of Venice, Act 4, Scene 1.

Portia may expound the law of Venice; but in the
English law it is also an established rule to abide by
former precedents, stare decisis, where the same points
come again in litigation. An English judge is sworn
to determine, not according to his own private judg-

A s

10

ment (see per Lord Camden, 19 Howell's State Trials,
1071; per Williams, L., 4 CL & Fin. 729), but ac-
cording to the known laws and customs of the land;
not appointed to pronoimce a new law, but to main-
tain and expound the old, jus dicere et non jus
dare: (1 Bla. Com. per Lord Kenyon, C. J., 5 T. E.
682, 6 Id. 605, and 8 Id. 239; per Grose, J., 13
East, 321; per Lord Hardwick, C, Ellis v. Smith,
1 Ves. jun., 16 T. E. 696, 1 B. & B. 563.) Stare
decisis et non quieta mover e — to stand by things as
decided, and not to disturb those things which are
tranquil, for omnis vnnovatio plus novitate perturbat
quam utilitate prodest (2 Bulstr. 338), — every inno-
vation occasions more harm and derangement of order
by its novelty, than benefit by its abstract utility.
The ancient judges of the law have ever (as appeareth
in our books) suppressed innovations and novelties
in the beginning, as soon as they have offered to
creep up, lest the quiet of the Common Law might
be disturbed, and so have acts of parliament done the
like. (Co. Litt. 379 b.) The judges say in one book,
"we will not change the law which always hath been
used;" and another saith, "it is better that it be turned
to a default, than the law should be changed, or any
innovation made." (Co. Litt. 282 b.) The rule stare
decisis does, however, admit of exceptions, where the
former determination is most evidently contrary to
reason, or to the divine law.

11

Ceanmee. " Ah, my good lord of WinclieBtea', I thank you ;

You are always my good friend : if your will pass,
I shall both find your lordship judge and juror."
Henry VIII. Act 5, Scene 2.

Ad qucBstionem facti non respondent judices, ad
qucBstioncTn legis non respondent juratores. (8 Eep.
308.) It is the office of the judge to instruct ^the
jury in points of law — of the jury to decide on mat-
ters of fact. It is the office of the judges to instruct
the grand assize or jury in points of law; for as the
grand assize or other jurors are triers of the matters
of fact, ad quoestionenm, faeti non respondent judices,
so, ad qucBstionem juris nxyn respondent juratores.
It is of the greatest consequence to the law of England
and to the subject that these powers of the judge and
jury be kept distinct, that the judge determine the
law, and the jury the fact; and if ever they come to
be confounded, it will prove the confusion and des-
truction of the law of England. . (Rex v. Poole, Cas.
temp. Hardw. 28.)

Elizabeth. " What now, my son ? have I not ever said,

How that ambitious Constance would not cease,

Till she had kindled France and all the world

Upon the right and party of her son ?

This might have been prevented and made whole,

With very easy arguments of love !

Which now the manage of two kingdoms must

With fearful bloody issue arbitrate."

KiNe John. "Our strong possession, and oui light for us."

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12

Elizabeth. "Your strong possession, much more than your
right;
Or else it must go wrong with you, and me :
So much my conscience whispers in your ear ;
Which none but heaven, and you, and I, shall
hear.

Act 1, Scene 1.

In cequali jure Tnelior est conditio possidentis.
(Plowd. 296.) Where the right is equal, the claim
of the partj in possession shall prevail. The lowest
and most imperfect degree of title consists in the
mere naked possession, or actual occupation of the
estate ; without any apparent right, or any shadow or
pretence of right, to hold and continue such posses-
sion. This may happen when one man invades the
possession of another, and by force or surprise turns
him out of the occupation of his lands; which is
termed a' desseisin, being a deprivation of that actual
seisin, or corporal freehold of the lands, which the
tenant before enjoyed. (2 Bla. Com. 195; 1 Inst.
345.) Or it may happen that after the death of the
ancestor and before the entry of the heir, or after the
death of a particular tenant and before the entry of
him in remainder or reversion, a stranger may con-
trive to get possession of the vacant land, and hold
out him that had a right to enter. In such cases the
wrong-doer has only a mere naked possession, which
the rightful owner may put an end to by a variety of
legal remedies. But until some act be done by the
rightful owner'to divest this possession and assert his

13

title, such actual possession is pri/ma fade evidence
of a legal title in the possessor ; and it may by length
of time, and -negligence of him who hath the right,
by degrees ripen into a perfect and indefeasible title.
(2 Bla. Com. 196.) King John seems to refer to this
maxim when he says,

" Our strong possession, and our right for us,"

but Elizabeth says,

"Your strong possession, much more than your right,"

because John was not m cequali jure with Arthur,
but he was a wrong-doer, having merely a naked
possession ; for after the death of King Eichard I.
John occupied the throne in defiance of the .right of
his nephew Arthur, who was the son of John's elder
brother Greoffry.

Hamlet. " Farewell, dear mother."

Ken&. " Thy loving father, Hamlet."

Hamlet. " My mother : father and mother is man and wife ;
Man and wife is one flesh ; and so, my mother."

Act 4, Scene 3.

Vir et uxor sunt quasi unica persona, quia caro
una, et sanguis unus. (Bracton, lib. 5, Tract. 5, cap.
25.) Man and wife are as one person, because they
are one flesh and one blood. A man may not grant
nor give his tenements to his wife, during the cover-
ture, for that his wife and he be but one person in

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law. (Litt. s. 168.) If a joint estate be made of
land to a husband and wife and to a third person, in
this case the husband and wife have in law in theii"
right but the moiety, and the third person shaU have
as much as the husband and the wife, viz. the other
moiety, &c. And the cause is, for that the husband
and wife are but one person in law, and are in like
case as if an estate be made to two joint tenants,
where the one hath by force of the jointure the one
moiety in law, and the other the other moiety, &c.
(Litt. s. 221): for the husband and wife are accounted
to be but one person in law, duce ani/mce vn came
una. (Lex divina, and see 6 Eep. 4.)

Faxstapp. " Of what quality was your love, then ?"
JFoED. '" Like a fair house, built upon another man's ground;
90 that I have lost my edifice, by mistaking the place where I
erected it." — Merry Wives of Windsor, Act 2, Scene 2.

Mes. QthckIiT. "Alas the day ! good heart that was not her
fault ; she does so take on with the men ; they mistook their
erection."

Falstafp. " So did I mine, to build upon a foolish woman's
promise." — Merry Wives of Windsor, Act 3, Scene 5.

Quicquid plantatur solo solo cedit (Wentw. Off.
Ex. 14th ed. 145.) Whatever is affixed to the soil
belongs to the soil. It is a general and a very ancient
rule of law that whatever is affixed to the soil be-
comes, in contemplation of law, a part of the soil, and
is consequently subject to the same rights of property
as the soil itself. ("Woodfall's Landlord and Tenant,

15

5th ed. 447.) The ancient Common Law, regarding
land as of far more consequence than any chattel
which could be fixed to it, always considered every-
thing attached to the land as part of the land. (4
Eep. 64 a ; 7 Lord Eaymond, 738 ; Mackintosh v.
Trotter, 3 Mee. & Wei. 184,186; Williams on Ex-
ecutors, pt. 2, bk. 2, ch. 3, s. 2.) Hence it follows
that houses themselves, which consist of an aggregate
of chattels personal, (namely, timber, bricks, &c.),
fixed to the land, were regarded as land, and passed
by a conveyance of the land without the necessity of
express mention ; and this is the case at the present
time. (Williams, P. P. 3rd ed. p. 13.) So if a man
eject another from land, and afterwards build upon
it, the building belongs to the owner of the ground
on which it is built, according to the principle ^di-
ficatv/m solo solo cedit. But where a man, supposing
that he has a good title to an estate, builds upon the
land with the knowledge of the real owner, who suf-
fers the erections to be made, without giving any
notice of his claim, the Court of Chancery will compel
him, in a suit brought for recovery of the land, to
make due allowance and compensation for such im-
provements. (Broom, Max.) Ford evidently refers
to this maxim, and Falstaff probably intends this
much to be understood, that he committed as great
a mistake, by building upon a foolish woman's pro-
mise, as they make who build upon another man's
ground.

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AjTOELO. "The law hath not been dead, though it hath
slept."

Measure for Measure, Act 2, Soene 3.

Dormiunt aliquando leges, moriuntur nunquam.
(2 Inst, 161.) The laws sometimes sleep, but they
never die. Although it was a maxim of the Civil Law
that as laws might he established by custom, they
could likewise become obsolete by desuetude, or be
abrogated by contrary usage, ea vero quce ipsa sibi
quceque civitas eonstituit scepe mutari solent vel
tacito consensu populi vel alia postea lege lata
(I. 1. 2, 11. ; Irving, Civil Law, 4th ed., 123) : and by
the law of Scotland a statute is said to lose its force
by desuetude (Stair, Macdoual, Wallace), if it has
not been in execution for sixty years, and according
to some Scotch lawyers for a hundred years ; and a
distinction is made between statutes which are as it
were half obsolete and those in viridi observantia,
yet by the law of England every statute continues
in force until it is repealed by a subsequent Act of
Parliament. Lex AnglioB sine parliamento mutari
non potest (2 Inst. 619), for nothing is so agreeable
to natural equity as that everything should be dis-
solved by the same means which made it binding.
Nihil tarn conveniens est naturali cequitati quam
unumquodque dissolvi eo ligamine quo ligatum
est. (2 Inst. 360.) The statutes can only be altered
or repealed by the same authority by which they
were made — jurg, eodem modo destituuntur quo con-

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stituuntur (Dwarr. Stats. 672), and, eodem ligamime
quo ligatum est dissolvitur. (Co. Litt. 212 b.)

WoLSET. "That seal

You ask with such a violence, the king,

(Mine, and your master,) with his own hand gave

me;
Bade me enjoy it, with the place and honours,
During my life ; and, to confirm his goodness,
Tied it by letters patent : now, who'U take it ?"

SuEEET. " The king, that gave it."

WoLSET. " It must be himself then."

Henry VIII. Act 3, Some 2.

The Lord Chancellor {a cancellando, from his
power to cancel Letters Patent, being the highest
point of his jurisdiction) or Lord Keeper, is the chief
judge in the extraordinary Court of Equity, as well
as in the ordinary Court of Common Law. (4 Inst.
79, 82, 88; Wood's Inst. 2nd ed. pp. 459, 460.)
He is not made by Letters Patent, but by the deli-
very of the Great or Broad Seal to him, and by
taking an oath to serve the king and his people
faithfully in the office of Lord Chancellor. (4 Inst.
87.) He is made Lord Chancellor of England, or
Lord Keeper of the Great Seal, per traditioitem
magni sigilli aihi per dominum regem, and by tak-
ing his oath, forma cancellarium constituendi
regnante Henrico secwndo fuit appendendo mag-
num Anglice sigillum ad collum cancellarii electi.
(Camden, p. 131.) Thus the delivery of the King's
Seal, or the taking it away (alluded to by Shakes-

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peare in this passage)^ is the ceremony used in creat-
ing or unmaking a chancellor. Some have gotten it
by Letters Patent, at will, (35 H. VI. 3. b. of Winch.,
1 Hen. VI. nu. 16.) and one for term of his life
(Cardinal Wolsey) ; but it was holden void, because
an ancient oflSce must be granted as it hath been
accustomed. (4 Inst. 87.)

Antipholtts E. " What, will you murder me ? Thou, gaoler,
thou,

I am thy prisoner : wilt thou suffer them

To make a rescue ?"
Officee. " Masters, let him go ;

He is my prisoner, and you shall not have him."
Pinch. " Go, bind this man, for he is frantick too."
Adriana. " What wilt thou do, thou peevish officer ?

Hast thou delight to see a wretched man

Do outrage and displeasure to himself?"
Officer. "He is my prisoner ; if I let him go,

The debt he owes, will be required of me.''

If a sheriff or gaoler suffers a prisoner, who is taken
upon mesne process (that is, during the pendency of
a suit), to escape, he is liable to an action on the case.
(Cro. Eliz. 625.) But if after judgment a gaoler or a
sheriff permit a debtor to escape, who is charged in
execution for a certain sum, the debt immediately
becomes his own, and he is compellable by an action
of debt, being for a sum liquidated and ascertained, to
satisfy the creditor his whole demand ; which doctrine
is grounded on the equity of the Statute of Westmin-
ster 2nd, 13 Edw. I. c. 11, and 1 Eich. II. c. 12.

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(Bro. Abr. t. parliament. 192 ; Inst. 382; 3 Bla. Com.
165.) Uhi jus ihi remediv/m. (1 T. E. 512.) There
is no wrong -without a remedy. Jus, in the sense
in which it is used in this maxim, signifies " the legal
authority to do or to demand something." (Mack-
field, Civ. Law. 6.) Remedium may be defined to be
the right of action, or the means given by law for the
recovery of a right, and, according to this maxim,
wbenever the law gives anything, it gives a remedy
for the same : lex semjper dabit remedium. (Jacobs
Law Die, title " Eemedy ;' Bac. Abr., Actions in ge-
neral; Broom, Max.) Every injm-y to a legal right
necessarily imports a damage in the nature of it,
though there be no pecuniary loss. (Per Holt, C. J.,
Ashby V. White, 2 Lord Eaymond.) Thus where a
prisoner is in execution on final process, the creditor
has a right to the body of his debtor every hour till
the debt is paid ; and an escape of the debtor, for
ever so short a time, is necessarily a damage to him,
and the action for an escape lies. (Williams v. Mos-
tyn, 4 M. & W. 153 ; Wylie v. Birch, 4 Qu. B. 566,
557 ; Clifton v. Hooper, 6 Qu. B. 468.)

Yoke. " I took an oath, that he should quietly reign.''

Edwasd. " But, for a kingdom, any oath may be broken :
I'd break a thousand oaths, to reign one year."

ElCHAED. " No ; God forbid, your grace should be forsworn."

YoEK. '' I shaU. be, if I claim by open war.''

KiCHAED. "I'll prove the contrary, if you'll hear me speak."

YoEK. " Thou canst not, son ; it is impossible."

RiCHAED. " An oath is of no moment, being not took

20

Before a true and lawful magistrate,
That hatli authority over him that swears :
Harry had none, but did usurp the place ;
Then, seeing 'twas he that made you to depose.
Your oath, my lord, is vain and frivolous."

III. Henry VL, Ast 1, Scene 2.

An oath is an aflHrmation or denial of anything be-
fore one that hath authority to administer the same,
calling Grod to ■witness _that his testimony is true. (3
Inst. 165. c. 74.) Sacramentum, habet in se tres
comites, veritatem, justitiam et judicium : Veritas
habenda estinjurato ; justitia et judicium in judice.
(Bracton, 1. 4, f. 186.) Four sorts of oaths have been
enumerated, viz., Juramentum promissionis, where
an oath is taken to do, or not to do such a thing ; (it
appears that York had taken an oath of this descrip-
tion) : Juramentum purgationis, which is where a
person is charged with any matter by Bill in Equity :
Juramentum probationis, where one is produced as
a witness to prove or disprove a thing ; and Juramen-
tum triationis, where one is sworn to try the issue,
such as a juror. The oath must be lawful, allowed
by the Common Law, or some Act of Parliament : so
Salisbury says —

" It is gTeat sin, to swear imto a sin ;
But greater sin, to keep a sinful oath.
"Who can be bound by any solemn vow
To do a murderous deed, to rob a man,
To force a spotless virgin's chastity,
To reave the orphan of his patrimony,

21

To wring tlie widow from laei customed right ;
And have no other reason for this wrong,
But that he was bound by a solenm oath ?"

II. Henry VI., Ad 5, Scene 1.

And it must be taken before one that bath authority ;
not before a person acting in a private capacity, or
pretending to have authority where he hath none ;
nor by one that goes beyond the authority which was
granted. For such false oaths cannot amount to per-
jury in law, because they are of no validity, being co-
rwm non judice. (3 Inst. 165 ; 4 Inst. 278, 279 ;
2 EoU. Abr. 257 ; Wood's Inst., 2nd ed., pp. 411, 412.)

Beatipoet. " The commons hast thou rack'd ; the clergy's
bags
Are lank and lean with thy extortions."
SoKEESBT. " Thy aum.ptuous buildings, and thy wife's attire,

Have cost a mass of public treasury."
BTJCKHfeHAM. " Thy cruelty in execution

Upon offenders, hath exceeded law.
And left thee to the mercy of the law."

II. Henry VI., Act 1, Seme 3.

Executio est executio juris secnmdv/m judidv/m.,
(3 Inst. 212.) It is a maxim of the law of England,
that the execution must be according to the judgment,
et quoe in cwria nostra rite acta swnt, debif execu-
tioni demandari debent: and for express authority,
non licet felonevn pro felonia decollare. In case of
high treason, beheading is part of the judgment,
and therefore the King may pardon all the rest saving
beheading, as is usually done in case of nobility.

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But if a man being attainted of felony be beheaded,
it is no execution of the judgment, because the judg-
ment is, that he be hanged until he be dead : in this
case the judgment doth belong to the judge, and he
cannot alter it ; the execution belongs to the sheriff,
&c., and he cannot alter it. And if the execution
might be altered in this case from hanging to be-
heading, by the same reason it might be altered to
burning, stoning to death, &c. (3 Inst. 211.) It is
worthy of notice that Shakespeare seems to have
been well aware of the distinct ofiSces of judge and
executioner, for he makes Gruiderius, in speaking of
Cloten, say,

" Why should we be tender,
To let an arrogant piece of flesh threat us ;
Play judge and executioner, all himself?"

Cymbeline, Act 4, Scmm 2.

If an officer beheads one who is adjudged to be
hanged, or vice versa, \i is murder : (1 Hale, P. C.
494; 1 Hawk. P. C. c. 28, ss. 11, 12, 17, 18), for he
is merely ministerial, and therefore only justified when
he acts under the authority and compulsion of the
law ; but if a sheriff substitutes one kind of death for
another, he then acts by his own authority, which
does not extend to the commission of homicide.
(4 Bla. Com. 179.) If the sheriff, or other proper
officer, alters the execution or any other doth execute
the offender, or if he is slain without authority of law,
it is felony, and the law implies malice. (Wood's

23

Inst., 2nd ed., p. 662.) So Clarence says to the mur-
derers hired by Gloster,

" Are you call'd forth from out a world of men
To slay the imiocent ? What is my offence ?
Where is the evidence that doth accuse me ?
What laTrtful quest have given their verdict up
Unto the frowning judge ? or who pronounced
The bitter sentence of poor Clarence' death ?
Before I be convict by coiirse of law,
To threaten me vrith death is most unlawful."

Richard III., Act 1, Scene 4.

To conclude this point : Judicium est legibus, non
exemplis, (4 Eep. 33), and Judicium est juris dictum,
and executio est executio juris secundum, judicium.
(3 Inst. 211.) Buckingham may also refer to
Grloster's cruelty in making the law an instrument
of oppression or extortion and the liability thereby
incurred, for Executio juris non habet injuriam.
(2 Inst. 481 ; 1 Inst. 289 a.) The law in its executive
capacity will not work a wrong. If an individual,
under colour of the law, does an illegal act, or if he
abuses the process of the court to make it an instru-
ment of oppression or extortion, this is a fraud upon
the law, by the commission of which liability will be
incurred.

Claudio. " FeUow, why dost thou show me thus to the world P
Bear me to prison, where I am committed."

Peovost. " I do it not in evil disposition,

But from lord Angelo, by special charge."

Measure for Measure, Act 1, Scene 3.

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Qui jussu judids aliquod fecerit non videtwr
dolo Tnalo fecisse quia parere necesse est. (10 Eep.
70, 76.) Where a man does anything by command
of a judge, the law will not consider that he acted
from any wrongful motive, because it was necessary
for him to comply with the orders of the judge. In
26 Ed. III. 7. 70. it is taken for a maxim, that the
thing which an officer doth by warrant or command
of a court, cannot be said to be against the peace :
and Doct. and Stud. L50, the king's officers are bound
to execute the king's writs at their peril. (10 Eep. 70.)
When a court has jurisdiction of the cause, and pro-
ceeds inverso ordine, or erroneously, no action lies
against the party who sues, or the officer or minister
of the court who executes the precept or process of
the court. But when the court has no jurisdiction of
the cause, then the whole proceeding is coram non
judice, and actions will lie against them without any
regard of the precept or process, for it is not neces-
sary to obey him who is not a judge of the cause, no
more than it is to obey a mere stranger, for the rule
is, judicium a non suo judice datum, nullms est
momenti. (10 Eep. 76.)

Lady Macbeth. " What need we fear who knows it, when
none can call our power to account?" — Macbeth, Act 5, Scene 1.

Leab. " No, they cannot touch me for coining ;
I am the king himself! "

Lear, Act 4, &ej>e 6.

25

GoNEElt. " Say, if I do ; the laws are mine, not thine ;
Who shall arraign me for 't ? "

Lear, Act 5, Scene 3.

Lady Macbeth, Lear and Goneril seem to refer to
the ancient and fundamental principle of the English
constitution, that the king can do no wrong. Rex
non potest peccare. (2 Eoll. E. 304; Jenk. Cent., 9,
308.)

Dttie. "He dies for Claudio's death."

Isabella. " Most hounteous sir, l_Kneelmff.'}

Look, if it please you, on this man condemn'd.

As if my brother liv'd : I partly think

A due sincerity govem'd his deeds

Till he did look on me ; since it is so,

Let him not die : my brother had hut justice,

In that he did the thing for which he died :

For Angelo,

His Eict did not o'ertake his bad intent.

And must be buried but as an intent

That perish'd by the way : thoughts are no subjects ;

Intents but merely thoughts."

Measure for Measure, Act 6, Scene 1.

An evil intention is not punishable equally with the
fact; Cri/men non contrahitur nisi nocend/i voluntas
intercedit : (Bracton, lib. cap. 4; Wood's Inst., 2nd ed.,
p. 340), except in treason, when the maxim voluntas
reputatur pro facto (3 Inst. 5, 69), the will is taken
for the deed, is said to apply to its full extent. It is
a rule laid down by Lord Mansfield, said to comprise
all the principles of previous decisions in similar
cases (per Lawrence, J., Eex v. Higgins, 2 East, 21),

26

that so long as an act rests in bare intention, it is not
punishable by the law of England, — so Ulpian says,
Cogitationes poenaTn nemo patitur (D.48, 19, 18), and
Montesquieu, Les lois ne se chargent de punir que
les actions exterieurs, — but when an act is done, the
law judges not only of the act itself, but of the intent
with which it was done.

Angelo. " What's open made to justice,

That justice seizes."

Measure for Measure, Act 2, Scene 1.

And if the act be accompanied with an unlawful and
malicious intent, though in itself the act would other-
wise have been innocent, yet, the intent being criminal,
the act hkewise becomes criminal and punishable.
(Rex V. Scofield, 2 East, P. C. 1028.) Iton officii
conatus, nisi .sequitur effectus (6 Rep. 42 ; Wood's
Inst., 2d ed., p. 340) : for it is a principle of natural
justice and of our law that the intent and the act must
both concur to constitute the crime. (Lord Kenyon,
7 T. R. 514.) But where one has the use of his
reason, and is at liberty, his endeavour to commit a
felony, as to rob, &c., is punishable, though not to
that degree as if the felony and robbery, &c., had
been actually committed. For in such cases voluntas
non reputabitur pro facto, the will shall not be taken
for the deed. (3 Inst. 69 ; 1 1 Rep. 98.)

Hamlet. " Give me your pardon, sir : I have done you wrong ;
But pardon it, as you are a gentleman.
This presence knows, and you must needs have heard,

27

How I am piinish'd with a sore distraction.

What I have done,

That might your nature, honour, and exception,

Roughly awake, I here proclaim was madness.

Was 't Hamlet wrong'd Laertes ? Never, Hamlet :

If Hamlet from himself be ta'en away,

Ajid, when he's not himself, does wrong Laertes,

Then Hamlet does it not; Hamlet denies it."

In all crimes there must be an evil disposition ; a
mere mistake is not punishable ; and those that are to
be esteemed guilty of any offences must have the use
of their reason, and be at their own disposal or liberty
(Wood's Inst., 2d ed., p. 340, 339) : for Actus non
facit reum nisi mens sit rea (3 Inst. 107), — the act
does not make a man guilty unless his intention were
guilty. Moreover Hamlet says,

"Who does it then ? His madness : if 't be so,
Hamlet is of the faction that is wrong'd ;
His madness is poor Hamlet's enemy."

And in criminal cases, idiots and lunatics are not
chargeable for their own acts, if committed at a time
when they are non compos Tnentis, for it is a maxim
of the law of England that furiosus solo furore
puniatur, — a madmaii is only punished by his mad-
ness. (Co. Litt. 247 b ; Bla, Com. 24, 25.) So Ham-
let says he is of the faction that is wrong'd : and he
seems to refer, not only to the masdm that the act
does not make a man guilty unless his intention were
guilty, but afterwards, in the same passage, to the
kind of homicide to which it is applicable :

28

" Sir, in tMs audience,
Let my disclaiming from a purposed evil,
Free me so far in your most generous thoughts.
That I have shot my arrow o'er the house
And hurt my hrother."

Hamlet, Act 5, Scene 2.

viz., homicide per infortuniwm, or by misadventure*,
^Hch is where a man, doing a lawful act, without any
intention of hurt, by accident kills another ; as, for
instance, where a man is working with a hatchet, and
the head by accident flies off and kills a bystander.
So Bracton says, De amputatore arhorwm, qui cum
Tamuin projiceret, inscius occidit transeuntem : aut
cum quis pilam percusserit, &c. ex cujus ictu ocdsus
est, tales de homiddio non tenentur (lib. 3. fo. 136 b.).
If a man shooting at butts or a target, by accident
kill a bystander, it is misadventure (1 Hale, 472, 475,
380) ; but this must be understood of cases where a
proper precaution to prevent accidents has been taken,
for if the target be placed near a highway or path,
where persons are in the habit of passing, the killing
would probably be deemed manslaughter.

Camillo. " Have you thought on

A place, whereto you'll go ?"
Flobizel. " Not any yet :

But as the unthimghi-on accident is guiUy

* Homicide (from the Latin homicidium ; homo, a man, and
c(sdo, to strike, or kill) signiflea the killing of a human creature,
and it is of three kinds, justifiable, excusable, and felonious.

29

1o what we wildly do ; SO we profesS
Ouiselves to be the slaves of chance, and flies
Of eveiy wind that blows."

Winter's Tale, Act 4, Sce>ie 3.

If the act be unlawful, it is murder. As if A,
meaning to steal a deer in the park of B., shooteth
at the deer, and by the glance of the arrow killeth a
boy that is hidden in a bush, this is murder; for
that the act was unlawful, although A. had no intent
to hurt the boy, nor knew not of him. Thus if B.,
the owner of the park, had shot his own deer, and
without any ill intent had killed the boy by the
glance of his arrow, this had been homicide by mis-
adventure, and no felony. So if one shoot at any
wild fowl upon a tree, and the arrow killeth any
reasonable creature afar off, without any evil intent
in him, this is 'per infortunium : for it was not un-
lawful to shoot at the wild fowl ; but if he had shot
at a cock or a hen, or any tame fowl of another
man's, and the arrow by mischance had killed a
man, this had been murder, for the act was unlawful.
If a man knowing that many people come in the
street from a sermon, throw a stone over a wall,
intending only to fear them or to give them a light
hurt, and thereupon one is killed, this is murder ; for
he had an ill intent, though that intent extended not
to death, and though he knew not the party slain.
(Marlbr. ca. 25. ; 3 Inst. 56, 57.) All crimes have
their conception in a corrupt intent, and have their

30

consummation and issuing in some particular fact,
which, though it be not the fact at which the in-
tention of the malefactor levelled, yet the law giveth
him no advantage of the error, if another particular
ensue of as high a nature. (Lord Bacon's Max. reg.
15.) As if A. having malice to B. strikes at him, and
misseth him and kills C, this is murder in A. (9 Eep.
81 ; H. P. C. 50.) So Bracton says. Si quis unwm
percusserit, cum alium percutere vellet, in felonia
tenetur (lib. 3, fol. 155.) And if one lays poison to
kill B., and C. takes it and dies in consequence, this
is murder in him that laid the poison : for. In cri/m-
inalihus suffi,cit generalis malitia intentionis cum
facto paris gradus. (Bacon, Max. 65.) The malice
intended to one makes the accidental death of
another to be murder. (Wood's Inst., 2nd ed., 353.)

HuBEKT. " Stand back, Lord Salisbury ; stand back, I say ;
By heaven I think my sword's as sharp as yours.
I would not have you, Lord, forget yourself,
Nor tempt the danger of my true defence,
Lest I, by marking of your rage, forget
Your work, your greatness, and nobility."
Biaoi. " Out, dunghill ! darest thou brave a nobleman ?"

Hubert. " Not for my life ; but yet I dare defend
My innocent life against an Emperor."

Kinff John, Act 4, Scene 2.

Excusable homicide is se defendendo, or where one
has no other possible means of preserving his own
life than by killing the person who reduces him to
such a necessity : for, Vi/m vi repellere licet, m,odo

31

fiat, Tnoderamvne i/nculpatce tutelce, non ad su-
mendam vi/ndictain, sed ad propulsandaTn m-
jurium. (1 Inst. 162 a; Wood's Inst., 2nd ed., 359.)

AiclBlABES. " Who cannot condemn rashness in cold blood ?
To kill, I grant, is sin's extremest gust ;
But, in defence, by mercy, 'tis most juat."

Timon of Athens, Act B,. Scene 5,

It is said that it must be a killing upon an iaevit-
able necessity ; but necessity always implies that the
act was inevitable, or that it could not have been
otherwise. The party assaulted is not to be excused,
unless he gives back to the wall, hedge, river, &c.,
beyond which he cannot go, before he kills the other.
But if A. assault B. so fiercely and violently, and in
such a place, and in such manner, as if B. should
give back, he should be in danger of his life, he may
in this case defend himself ; and if in that defence
he killeth A., it is se defendendo, because it is not
done felleo animo : for the rule is, when he doth it
in his own defence, upon any inevitable cause.
Quod quis ob tutelam corporis sui fecerit, jure id
fedsse videtur. (H. P. C. 41, 42 ; 3 Inst. 55, 56.)
What any one may have done for the protection of
his person, is considered to have been dcme by law.

32

SCENE I.— A Churchyard.
Enter Two Clowiis, with Shades, Sfc.

1 Czoyns. " Is she to be buried in cbristian burial, tbat wil-
fully seeks ber o-wn salvation ?"

2 Clown. " I tell thee, sbe is ; therefore make her grave
straight : the crowner hath sate on her, and finds it christian
burial."

1 Clown. " How can that be, unless she drowned herself in
her own defence ? "

2 Clown. " Why, 'tis found so."

1 Clottn. "It must be se offendendo ; it cannot be else. For
here lies the point : If I drown myself wittingly, it argues an
act : and an act hath three branches; it is, to act, to do, and to
perform: Aigal, she drowned herself wittingly."

2 Clown. " Nay, but hear you, goodman delver."

1 Clown. " Give me leave. Here lies the water ; good : here
stands the man ; good : K the man go to this water, and drown
himself, it is, wiU he, niU he, he goes ; liiark you that : but if the
water come to him, and drown him, he does not drown him-
self: Algal, he, that is not guilty of his own death, shortens
not his own life."

2 Clown. " But is this law ? "

1 Clown. " Ay, marry is't ; crowner's-quest law." — Hamlet,
Act 5.

It seems that Shakespeare has made the First Clown
confound a felo de se, or one who is guilty of self-
murder, with a person who commits homicide se
defendendo, in his own defence, or, as he miscalls it, se
offendendo ; for, in answer to the Second Clown's assur-
ance that " the crowHer hath sate on her, and finds it
christian burial," he says, " How can that be unless

33

she drowned herself in her own defericeV^ This
is also apparent from his reasoning, which, although
it may appear absurd, is good law ; for he evidently
means, that if the water comes to a man and drowms
him, not " wittingly," but against his inclination, he
is as innocent of suicide as that man is innocent of
murder who, se defendendo, in his own defence, kills
another who felleo anvmo pi^esses upon him. And
so the crowner found it " christian burial ; " for al-
though the " churlish priest " tells Laertes that " her
death was doubtful," yet the Queen says,

" There on the pendent boughs her coronet weeds
Clambering to hang, an envious sliver broke ;
When down her weedy trophies, and herself,
Fell in the weeping brook."

And although, according to this account, the water
cannot be said to come to Ophelia, it appears that
she was drowned, not " wittingly," but against her
inclination. Suicides were not entitled to what is
called "christian burial," for it was formerly the
custom to drive a stake through the body of one who
had been guilty of self-murder, and to bury it in the
highway ; but this brutal law and ignominious burial
has been altered by the 4 Geo. IV. c. 52, which
directs that a person felo de se shall be buried with-
out any stake driven through the body, privately, in
a churchyard, within twenty-four hours from the
finding of the inquisition, and between the hours of

34

nine and twelve at night ; but this statute does not
authorise the performance of the rites of christian
burial.

The evidence of Shakespeare's legal knowledge
hereinbefore contained, is in addition to that which
I, some time since, submitted to the consideration of
the pubKc ; and the reader may consider that many,
if not all, of the passages I have selected, contain
most unm.i8takable allusions to the maxims of the
English law.

THE END.

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